On the Twenty-Fifth Amendment

There are two constitutionally outlined mechanisms for the removal of a President, there is the well-known trigger of impeachment power that is bestowed upon the House to begin and the Senate to consider in a trial, and then there’s a lesser-known mechanism: the 4th section of the 25th Amendment to the United States Constitution.

25th Amendment, Section 4 of the U.S Constitution:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

In essence, Section 4 of the Twenty-Fifth Amendment would enable the vice president and a majority of the Cabinet to recommend the removal of the president in cases where he is “unable to discharge the powers and duties of his office,” and would trigger the House and Senate to vote to confirm the recommendation in the case of the president’s objection by two-thirds vote.

This, more than ever before, has been injected into the mainstream legal and ethical debate concerning the Presidency and what it means to be “unable to discharge the powers and duties of the office”. To better understand the nature of what it could possibly mean, we should take a brief detour into the history books.

The History of the 25th Amendment

The Founders undoubtedly created a robust system of government for its time, however, they did leave questions to be had in regards to the language and implications of certain clauses of the Constitution. Technically, the Constitution never explicitly spelled out how a Vice President would become President if a President died, resigned or was unable to perform the office’s duty, whether the Vice President would merely become “Acting President” or assume the full authority of the Presidency.

This oversight and lapse in constitutional language became an issue for the first time in 1841, when the newly elected President, William Henry Harrison, died about a month after becoming President. Vice President John Tyler, in controversial fashion, sought to settle this matter with speed. Despite there being an open question in Congress and among Washington socialites about what powers Tyler may have had and what he should be called (Acting President, President or Vice President), Taylor asked a local judge to administer the presidential oath. President Taylor would spend the rest of his time in office fighting off attempts to treat him as anything but the duly and constitutionally legitimate President. This precedent took deep hold in the five subsequent situations of succession.

However, the Tyler precedent had no application with regard to the fact that there was still no constitutional or statuary way to replace a Vice President who had vacated office.

Or, when a President would become incapacitated yet not removed from office through death or impeachment.

The issue would become more and more of a topic of discussion on Capitol Hill with each subsequent assassination or death of a President, and it began to reach a boiling point in the 1950s with Eisenhower having illness plague him throughout his presidency. During the Eisenhower Administration, The influential Senator Estes Kefauver of Tennessee began a serious push for an amendment that we would eventually know as the 25th. While it didn’t gain traction during Eisenhower’s presidency, he renewed it in 1963. Kefauver, unfortunately, died in August 1963 after suffering a heart attack on the Senate floor.

Then, on November 22nd, 1963, President John F. Kennedy was shot and killed in Dallas Texas.

The mayhem that ensued on that day was near-apocalyptic, right on the heels of the end of the Cuban Missile Crisis, the President was killed and there were (later proven to be false) reports that the Vice President was also wounded. This led Johnson to choose to take his oath of office with a photographer near, in order to assuage the public’s fears and reassure them that a constitutional succession had taken place.

With JFK’s death and the uncertainty surrounding Johnson’s health putting the nation into temporary paralysis, the need for a clear way to determine the presidential succession, especially with the new reality of the Cold War and a chance of nuclear annihilation, pushedCongress into action on the issues of succession.

Senator Birch Bayh had replaced Kefauver on the Senate subcommittee that considered constitutional amendments, and he tried to get a version of the Kefauver amendment approved in Congress in 1964, after Kennedy’s death. That first effort failed, but Bayh, with President Lyndon Johnson’s support, proposed it again right after Johnson’s inauguration in January 1965.

With the death of Senator Estes Kefauver, a new spot opened up on the Senate Subcommittee for Constitutional Amendments. With that opening in play, a rising star on Capitol Hill in the form of Senator Birch Bayh filed the vacuum and immediately set out to address the urgency of succession.

Senator Bayh had attempted to get a version of the Kefauver amendment approved in Congress in 1964 after Kennedy’s death had occurred. While that initial effort failed, it was revived yet again following the presidential election landslide that was Johnson’s victory, and with Johnson’s support, this time around it was passed in Congress in 1965.

Nebraska became the first state to ratify the proposed amendment. After two years of successive ratification efforts, Minnesota was the 37th states and Nevada was the 38th state to ratify the amendment, both on February 10, 1967, making it the law of the land.

The first section of the Amendment finally resolved the constitutional question of what the Vice President’s role truly is when a President dies, resigns, or is otherwise removed from office: He/She becomes the President in complete scope. This was applied for the first time on August 9th, 1974, with the resignation of President Nixon and the assumption of office by the new President, Gerald Ford.

That establishes the history of the 25th amendment and its passage, and yet while it may have primarily focused on ensuring a stable succession, there remains a problem that has become ever more pertinent to the discourse since the election of Donald J. Trump:

What constitutes being “unable to discharge the powers and duties of his office”?

What does it mean to be unfit for office?

As mentioned at the beginning of this piece, there are two constitutionally outlined mechanisms for removal of a President: impeachment, and section 4 of the 25th Amendment. While impeachment is a largely political tool, despite the Framers by all measurements intending for it to absolutely not be, there has been a more open-ended debate about what the applications for the 25th should be.

Some would posit that the application should be narrow and limited in scope, covering only physical and mental incapacity. Others, like Ross Douthat, would argue that the Amendment should be invoked to stop what he calls a “childish president” who is unfit for office and who is unlikely to be impeached. For what it is worth, Senator Bayh, the father of the Amendment, argued in a New York Times op-ed that the matter of application, and what makes a President unfit to hold office, is entirely political:

“Besides, as Dwight D. Eisenhower said, the “determination of Presidential disability is really a political question.” The Vice President and Cabinet are uniquely able to determine when it is in the nation’s best interests for the Vice President to take the reins.”

The discussion over the application is extremely important today. It was reported on numerous occasions in the year of 2018 that Justice officials had floated the idea of invoking the 25th amendment against President Donald J. Trump. This was reiterated on February the 14th when Andrew McCabe confirmed these reports.

It is no question that among national security experts and legal scholars the current President has posed an almost existential threat to the stability and health of our democracy. He decries the independence of the Judiciary, Justice Department, and the loyalty of the military to the Constitution above President. He’s attempted to obstruct inquiries into the Russian interference investigation(s), which poses a threat to the counterintelligence operations of the U.S Government. Furthermore, many politicians, including those within his party, regard him as a threat to the country itself.

In fact, one can easily forget that in an explosive (and anonymous) New York Times piece, it was stated that even members within the cabinet itself were contemplating the usage of the 25th amendment for removal of this President:

“Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.”

Regardless of one’s opinions on the scope and application of the 25th amendment’s fourth section, it is universally agreed that a cabinet-led removal of a President who has not (yet) shown signs of physical impediment would likely result in political upheaval. The consensus seems to be that it’s either impeachment or electoral defeat that will write this presidency its final chapter.

A slow walking constitutional crisis

Despite the Justice Department, and Trump’s own White House, having deep concerns over the capability of the President to fulfill the responsibilities of the office, it is very unlikely they will take action through the 25th Amendment. Not only is there the prospect of such an event only emboldening conspiracies that there is a nefarious “Deep State” out to bring down the President, but it would also likely result in a catastrophic loss of confidence in the government.

One could make the case that in any case similar to this one, the Founders would encourage us to use the impeachment clause and end this nightmare of incompetence, corruption, and kleptocratic submission to foreign interest. What the Framers could not have anticipated is the stranglehold of a dual-partisan system on an ideally nonpartisan system, and the politicization of a constitutional tool meant to protect the Republic and reign in a renegade Executive.

In short, Congress has short-circuited the system by abdicating its responsibility to the citizenry and Republic by refusing to even contemplate impeachment, thus forcing the Department of Justice and silent patriots on the inside to contemplate throwing the nation into a political crisis of its own kind.

I do not have the answers to the important question: Should the 25th Amendment be invoked? I don’t even know if I have my own defined opinion on the issue. Either decision only leaves more questions to be had, and monumental consequences that will lead the country into further disarray before it could possibly get better. The only thing I can muster in response to such a question of this magnitude is this:

How did we get here in the first place, and how do we recover?

occasionally writing

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